SECOND AMENDMENT TO OFFICE LEASE AGREEMENT
THIS SECOND AMENDMENT TO OFFICE LEASE AGREEMENT is entered into effective
as of the 20th day of October, 1995, by and between Fridley Business Center
Partnership, a Minnesota general partnership ("Landlord") and Xxxxxx Day
International, Inc., f/k/a Xxxxxx-Day Company, a Minnesota corporation
("Tenant").
RECITALS
A. Landlord and Tenant are parties, in said respective capacities, to
that certain Office Lease Agreement dated June 1, 1991, as amended by
amendment dated June 15, 1993 (collectively, the "Lease") under which Tenant
is leasing from Landlord 12,001 net rentable square feet of space in the
building (the "Building") located at 000 00xx Xxxxxx Xxxxxxxxx, Xxxxxxx,
Xxxxxxxxx, 00000, all as more fully described in the Lease.
B. The Land (as that term is described in the Lease) has been replatted
and a portion of the Land has been sold. The parties wish to revise the Lease
to reflect the new legal description of the remaining Land.
C. The parties also wish to extend the Term of the Lease and modify the
Base Rent payable thereunder, all as more fully described below.
AGREEMENT
IN CONSIDERATION of the extension of the Lease as described herein and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties agree as follow:
1. Conflict of Terms. In the event of a conflict between the terms
of this Amendment and the terms of the Lease, the terms of this Amendment shall
govern.
2. Legal Description of Land. Exhibit B of the Lease is hereby
revised to reflect that the legal description of the Land is as follows:
Xxx 0, Xxxxx 0, Xxxxxxx Xxxxxxxx Xxxx 4th Addition,
Anoka County, Minnesota.
3. Extension of Term. Under the Lease, the Term of the Lease
expires on March 31, 1998. The parties hereby extend the Term of the Lease
for an additional seven (7) years and eleven (11) months (the "Extension Term").
The Extension Term shall commence April 1, 1998 and shall terminate
February 28, 2006.
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4. Base Rent. From March 1, 1996 through the end of the initial
Term and during the Extension Term, Base Rent for the Leased Premises shall be
payable monthly in advance on the first day of each month as follows:
Period Base Rent Base Rental
Per Square Payable
Foot Per Month
------------------- ---------- ----------
03/01/96 - 09/30/96 $5.78 $5,780.48
10/01/96 - 02/28/97 $5.78 $5,780.48
03/01/97 - 03/31/98 $5.78 $5,780.48
04/01/98 - 02/28/99 $6.25 $6,250.52
03/01/99 - 02/29/00 $6.25 $6,250.52
03/01/00 - 02/28/01 $6.25 $6,250.52
03/01/01 - 02/28/02 $6.25 $6,250.52
03/01/02 - 02/28/03 $6.25 $6,250.52
03/01/03 - 02/29/04 $6.25 $6,250.52
03/01/04 - 02/28/05 $6.75 $6,750.56
03/01/05 - 02/28/06 $6.75 $6,750.56
5. Operating Costs. During the Extension Term, Tenant shall pay
Tenant's Proportionate Share of the Operating Costs for the Leased Premises in
accordance with the provisions of the Lease.
6. Option to Renew. Tenant shall have the right to further extend
the Term of this Lease for two (2) periods of five (5) years each as
hereinafter provided, each such five (5) year renewal period being sometimes
herein referred to as a "Renewal Term". The conditions to such renewals shall
be as follows:
(a) The Lease shall be in full force and effect and Tenant shall
not be in default in the performance of any of the terms, covenants
and conditions of the Lease, in respect to which notice of default
has been given and has not been or is not being remedied in the time
limits specified in the Lease; provided, however, that Landlord
shall have the right, at its sole discretion, to waive the non-
default condition;
(b) Such Renewal Term shall be on the same terms, covenants and
conditions as in this Lease; provided, however, the annual Base Rent
for such Renewal Term shall be the fair market Base Rental rate for
such space on the date such Renewal Term shall commence in relation
to comparable (in quality and location) space located
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in the relevant market area. The fair market Base Rent of the
Leased Premises shall be determined as of the date three hundred
sixty (360) days prior to commencement of the Renewal Term in
question. If Tenant has properly elected to renew the Term of this
Lease, and Landlord and Tenant fail to agree at least three hundred
thirty (330) days prior to commencement of the applicable Renewal
Term upon the fair market Base Rent of the Leased Premises, the
amount of the fair market Base Rent of the Leased Premises shall be
determined by arbitration in accordance with the provisions of
paragraph 7, below ("Arbitration"). The fair market Base Rent of
the Leased Premises shall be based upon Tenant's presently
contemplated use of the Leased Premises. In no event shall the Base
Rent of the Leased Premises for the Renewal Term in question be less
than the Base Rent payable by Tenant under the Term of this Lease
immediately prior to commencement of the applicable Renewal Term
(the " Minimum Renewal Rent"). If, however, the Fair Market Base
Rent determined in accordance with the provisions of paragraph 10,
below, is less than the Minimum Renewal Rent, Tenant shall have the
option to cancel its election to renew the Term; provided, however,
that Tenant's option to rescind its exercise of its option to renew
must be exercised, if at all, not later than three (3) business days
following Tenant's receipt of notice of the Fair Market Base Rent;
(c) Tenant shall exercise its right to a Renewal Term, if at all,
by notifying Landlord in writing of its election to exercise the
right to renew the Term of this Lease no later than three hundred
sixty (360) days prior to the date of commencement of the Renewal
Term in question. For a period of thirty (30) days following the
date of notice, the parties shall make a good faith effort to agree
upon the fair market Base Rent of the Leased Premises for such
Renewal Term. Any agreement reached by the parties with respect to
such fair market Base Rent of the Leased Premises for such Renewal
Term shall be expressed in writing and shall be executed by the
parties, and a copy delivered to each of the parties. In the event
that Landlord and Tenant fail to agree within said thirty (30) day
time period, the fair market Base Rent for the Leased Premises for
such Renewal Term shall be determined by Arbitration. The
arbitrators shall be directed to determine the fair market Base Rent
for the Leased Premises as above provided and shall be instructed to
make said appraisal independently, without consulting with each
other. Upon an established date at an established time, all three
(3) arbitrators shall simultaneously submit their determinations as
to fair market Base Rent, such determination to be submitted in
sealed envelopes and to be opened jointly by Landlord and Tenant.
The fair market Base Rent for the Renewal Term shall be determined
by averaging the two (2) arbitrators' fair market Base Rent
determinations which are closest in amount to each other (or if one
appraisal is less than one of the other appraisals and more than the
other appraisal by the same amount, all three appraisals shall be
averaged).
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7. Arbitration. Any disagreement, dispute or determination required
by or arising under the provisions of paragraph 6, above, requiring arbitration
shall be carried on and concluded in accordance with the provisions of
subparagraphs (a) and (b) hereof:
(a) In each case where it shall become necessary to resort to
arbitration, and the subject of the arbitration is to determine fair
market Base Rent, all arbitrators appointed by or on behalf of
either party or appointed pursuant to the provisions hereof shall be
MAI members of the American Institute of Real Estate Appraisers with
not less than ten (10) years of experience in the appraisal of
improved commercial and industrial real estate in the Minneapolis,
Minnesota metropolitan area and be devoting substantially all of
their time to professional appraisal work at the time of
appointment, and be in all respects impartial and disinterested. In
determining fair market Base Rent, the arbitrators shall consider
the condition of leasehold improvements in the Leased Premises
(other than removable trade fixtures) in comparison to leasehold
improvements in market comparables but shall not take into account
any market concessions (free rent, moving allowances, etc.) in
market comparables;
(b) The party desiring arbitration shall give written notice to
that effect to the other party, specifying in such notice the name,
address and professional qualifications of the person designated to
act as arbitrator on its behalf. Within twenty (20) days after
service of such notice, the other party shall give written notice to
the party desiring such arbitration specifying the name, address and
professional qualifications of the person designated to act as
arbitrator on its behalf. The two (2) arbitrators shall, within ten
(10) days thereafter, select a third arbitrator. The decision of
the arbitrators so chosen shall be given within a period of thirty
(30) days after the appointment of such third arbitrator. Each
party shall pay the fees and expenses of the arbitrator appointed by
or on behalf of such party and the fees and expenses of the third
arbitrator shall be borne equally by both parties. If the party
receiving a request for arbitration fails to appoint is arbitrator
within the time above specified, or if the two (2) arbitrators so
selected cannot agree on the selection of the third arbitrator
within the time above specified, then either party, on behalf of
both parties, may request such appointment of such second or third
arbitrator, as the case may be, by application to any Judge of the
District Court of the County of Hennepin, State of Minnesota, upon
ten (10) days prior written notice to the other party of such
intent. The arbitrators so selected shall have all rights and
powers conferred on them by the Uniform Arbitration Act of the state
in which the Leased Premises are situated, and except as otherwise
provided for herein, the arbitration proceedings shall be carried on
and governed by such Act.
8. Miscellaneous. The reference in Article 18, Section 1(e) of the
Lease to the lease of space at 000 00xx Xxxxxx X.X. is hereby deleted and
shall be of no further force or effect.
-16-
Article 14, Section 1 of the Lease is amended by adding the following
language: If Landlord does not initiate such repairs and restoration within a
reasonable time following a casualty or does not complete such repairs and
restoration with one hundred eighty (180) days thereafter, Tenant shall have
the right to terminate the Lease upon notice given within thirty days
following the expiration of such period, and thereafter, neither party shall
have any liability to the other with respect to matters which arose subsequent
to the casualty, other than the non-abated portion of Base Rent and Additional
Rent, if any. In addition, attached to this Agreement is an example of an
Estoppel, Subordination, Non-Disturbance, and Attornment Agreement which shall
be substituted for the form of Nondisturbance Agreement previously attached as
Exhibit G to the Lease. Landlord acknowledges that Tenant is a wholly-owned
subsidiary of Xxxxxx Day Holding, Inc., which in turn is jointly owned by
Xxxxxx Day Industries, Inc. and Xxxx X. Xxxxx. Any change in the ownership or
effective control of Xxxxxx Day Holding, Inc. as between the aforementioned
joint owners shall not be deemed an assignment requiring Landlord's consent.
9. No Further Modification of Lease. Except to the extent modified
herein, all other terms and provisions of the Lease shall remain in full force
and effect.
-17-
IN WITNESS TO THE FOREGOING, the parties have set their hands effective
as of the day and year set forth above.
LANDLORD: FRIDLEY BUSINESS CENTER
PARTNERSHIP
By Northco Corporation, its general
partner
By /s/ Xxxxxx Xxxxx
------------------------------------
Its Vice President
TENANT: XXXXXX DAY INTERNATIONAL,
INC., f/k/a XXXXXX-DAY COMPANY
By /s/ Xxxx X. Xxxxx
------------------------------------
Its President
-18-
CONSENT OF GUARANTOR
The undersigned is the Guarantor of the above referenced Lease under a
Guaranty dated June 1, 1991. The undersigned hereby consents to the amendment
of the Lease, and agrees that its Guaranty shall be deemed to be remade as to
the Lease and the subject amendment, effective as of the effective date of
said amendment.
XXXXXX DAY INDUSTRIES, INC.
By /s/ Xxxx X. Xxxxxx
----------------------------------------
Its VP, Sec'y & Controller
Date: October 20, 1995
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Second Amendment
Estoppel, Subordination, Non-Disturbance
and Attornment Agreement
[Sample of an estoppel, subordination, non-disturbance and attornment
agreement. Four pages.]
-00-
XXXXXX XXXXXXXXX TO RESEARCH & DEVELOPMENT LEASE AGREEMENT
THIS SECOND AMENDMENT TO RESEARCH & DEVELOPMENT LEASE AGREEMENT is
entered into effective as of the 20th day of October, 1995, by and between
Fridley Business Center Partnership, a Minnesota general partnership
("Landlord") and Xxxxxx Day International, Inc., f/k/a Xxxxxx-Day Company, a
Minnesota corporation ("Tenant").
RECITALS
A. Landlord and Tenant are parties, in said respective capacities, to
that certain Research & Development Lease Agreement dated June 1, 1991, as
amended by amendment dated June 15, 1993 (collectively, the "Lease") under
which Tenant is leasing from Landlord 8,630 net rentable square feet of space
in the building (the "Building") located at 000 00xx Xxxxxx Xxxxxxxxx,
Xxxxxxx, Xxxxxxxxx, 00000,0 all as more fully described in the Lease.
B. The Land (as that term is described in the Lease) has been replatted
and a portion of the Land has been sold. The parties wish to revise the Lease
to reflect the new legal description of the remaining Land.
C. The parties also wish to extend the Term of the Lease and modify the
Base Rent payable thereunder, all as more fully described below.
AGREEMENT
IN CONSIDERATION of the extension of the Lease as described herein and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties agree as follow:
1. Conflict of Terms. In the event of a conflict between the terms of
this Amendment and the terms of the Lease, the terms of this Amendment shall
govern.
2. Legal Description of Land. Exhibit B of the Lease is hereby revised
to reflect that the legal description of the Land is as follows:
Xxx 0, Xxxxx 0, Xxxxxxx Xxxxxxxx Xxxx 4th Addition,
Anoka County, Minnesota.
-----------------------
1 Note: A formal application has been made to change the street address
of the building to 000 Xxxxxxx Xxxxx.
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3. Extension of Term. Under the Lease, the Term of the Lease expires
on March 31, 1998. The parties hereby extend the Term of the Lease for an
additional seven (7) years and eleven (11) months (the "Extension Term"). The
Extension Term shall commence April 1, 1998 and shall terminate February 28,
2006.
4. Base Rent. From March 1, 1996 through the end of the initial Term
and during the Extension Term, Base Rent for the Leased Premises shall be
payable monthly in advance on the first day of each month as follows:
Period Base Rent Per Base Rental
Square Foot Payable
Per Month
------------------- ----------- ----------
03/01/96 - 09/30/96 $2.75 $1,977.71
10/01/96 - 02/28/97 $2.75 $1,977.71
03/01/97 - 03/31/98 $2.75 $1,977.71
04/01/98 - 02/28/99 $3.00 $2,157.50
03/01/99 - 02/29/00 $3.00 $2,157.50
03/01/00 - 02/28/01 $3.00 $2,157.50
03/01/01 - 02/28/02 $3.00 $2,157.50
03/01/02 - 02/28/03 $3.25 $2,337.29
03/01/03 - 02/29/04 $3.25 $2,337.29
03/01/04 - 02/28/05 $3.50 $2,517.08
03/01/05 - 02/28/06 $3.50 $2,517.08
5. Operating Costs. During the Extension Term, Tenant shall pay
Tenant's Proportionate Share of the Operating Costs for the Leased Premises in
accordance with the provisions of the Lease.
6. Option to Renew. Tenant shall have the right to further extend the
Term of this Lease for two (2) periods of five (5) years each as hereinafter
provided, each such five (5) year renewal period being sometimes herein
referred to as a "Renewal Term". The conditions to such renewals shall be as
follows:
(a) The Lease shall be in full force and effect and Tenant shall
not be in default in the performance of any of the terms, covenants
and conditions of the Lease, in respect to which notice of default
has been given and has not been or is not being remedied in the time
limits specified in the Lease; provided, however, that Landlord
shall have the right, at its sole discretion, to waive the non-
default condition;
-22-
(b) Such Renewal Term shall be on the same terms, covenants and
conditions as in this Lease; provided, however, the annual Base Rent
for such Renewal Term shall be the fair market Base Rental rate for
such space on the date such Renewal Term shall commence in relation
to comparable (in quality and location) space located in the
relevant market area. The fair market Base Rent of the Leased
Premises shall be determined as of the date three hundred sixty
(360) days prior to commencement of the Renewal Term in question.
If Tenant has properly elected to renew the Term of this Lease, and
Landlord and Tenant fail to agree at least three hundred thirty
(330) days prior to commencement of the applicable Renewal Term upon
the fair market Base Rent of the Leased Premises, the amount of the
fair market Base Rent of the Leased Premises shall be determined by
arbitration in accordance with the provisions of paragraph 7, below
("Arbitration"). The fair market Base Rent of the Leased Premises
shall be based upon Tenant's presently contemplated use of the
Leased Premises. In no event shall the Base Rent of the Leased
Premises for the Renewal Term in question be less than the Base Rent
payable by Tenant under the Term of this Lease immediately prior to
commencement of the applicable Renewal Term (the "Minimum Renewal
Rent"). If, however, the Fair Market Base Rent determined in
accordance with the provisions of paragraph 10, below, is less than
the Minimum Renewal Rent, Tenant shall have the option to cancel its
election to renew the Term; provided, however, that Tenant's option
to rescind its exercise of its option to renew must be exercised, if
at all, not later than three (3) business days following Tenant's
receipt of notice of the Fair Market Base Rent;
(c) Tenant shall exercise its right to a Renewal Term, if at all,
by notifying Landlord in writing of its election to exercise the
right to renew the Term of this Lease no later than three hundred
sixty (360) days prior to the date of commencement of the Renewal
Term in question. For a period of thirty (30) days following the
date of notice, the parties shall make a good faith effort to agree
upon the fair market Base Rent of the Leased Premises for such
Renewal Term. Any agreement reached by the parties with respect to
such fair market Base Rent of the Leased Premises for such Renewal
Term shall be expressed in writing and shall be executed by the
parties, and a copy delivered to each of the parties. In the event
that Landlord and Tenant fail to agree within said thirty (30) day
time period, the fair market Base Rent for the Leased Premises for
such Renewal Term shall be determined by Arbitration. The
arbitrators shall be directed to determine the fair market Base Rent
for the Leased Premises as above provided and shall be instructed to
make said appraisal independently, without consulting with each
other. Upon an established date at an established time, all three
(3) arbitrators shall simultaneously submit their determinations as
to fair market Base Rent, such determination to be submitted in
sealed envelopes and to be opened jointly by Landlord and Tenant.
The fair market Base Rent for the Renewal Term shall be determined
by averaging the two (2) arbitrators' fair market Base Rent
determinations which are closest in
-23-
amount to each other (or if one appraisal is less than one of the
other appraisals and more than the other appraisal by the same
amount, all three appraisals shall be averaged).
7. Arbitration. Any disagreement, dispute or determination required by
or arising under the provisions of paragraph 6, above, ("Option to Renew")
requiring arbitration shall be carried on and concluded in accordance with the
provisions of subparagraphs (a) and (b) hereof:
(a) In each case where it shall become necessary to resort to
arbitration, and the subject of the arbitration is to determine fair
market Base Rent, all arbitrators appointed by or on behalf of
either party or appointed pursuant to the provisions hereof shall be
MAI members of the American Institute of Real Estate Appraisers with
not less than ten (10) years of experience in the appraisal of
improved commercial and industrial real estate in the Minneapolis,
Minnesota metropolitan area and be devoting substantially all of
their time to professional appraisal work at the time of
appointment, and be in all respects impartial and disinterested. In
determining fair market Base Rent, the arbitrators shall consider
the condition of leasehold improvements in the Leased Premises
(other than removable trade fixtures) in comparison to leasehold
improvements in market comparables but shall not take into account
any market concessions (free rent, moving allowances, etc.) in
market comparables;
(b) The party desiring arbitration shall give written notice to
that effect to the other party, specifying in such notice the name,
address and professional qualifications of the person designated to
act as arbitrator on its behalf. Within twenty (20) days after
service of such notice, the other party shall give written notice to
the party desiring such arbitration specifying the name, address and
professional qualifications of the person designated to act as
arbitrator on its behalf. The two (2) arbitrators shall, within ten
(10) days thereafter, select a third arbitrator. The decision of
the arbitrators so chosen shall be given within a period of thirty
(30) days after the appointment of such third arbitrator. Each
party shall pay the fees and expenses of the arbitrator appointed by
or on behalf of such party and the fees and expenses of the third
arbitrator shall be borne equally by both parties. If the party
receiving a request for arbitration fails to appoint is arbitrator
within the time above specified, or if the two (2) arbitrators so
selected cannot agree on the selection of the third arbitrator
within the time above specified, then either party, on behalf of
both parties, may request such appointment of such second or third
arbitrator, as the case may be, by application to any Judge of the
District Court of the County of Hennepin, State of Minnesota, upon
ten (10) days prior written notice to the other party of such
intent. The arbitrators so selected shall have all rights and
powers conferred on them by the Uniform Arbitration Act of the state
in which the Leased Premises are situated, and except as
-24-
otherwise provided for herein, the arbitration proceedings shall be
carried on and governed by such Act.
8. Miscellaneous. The reference in Article 18, Section 1(e) of the
Lease to the lease of space at 000 00xx Xxxxxx X.X. is hereby deleted and
shall be of no further force or effect. Article 14, Section 1 of the Lease is
amended by adding the following language: If Landlord does not initiate such
repairs and restoration within a reasonable time following a casualty or does
not complete such repairs and restoration with one hundred eighty (180) days
thereafter, Tenant shall have the right to terminate the Lease upon notice
given within thirty days following the expiration of such period, and
thereafter, neither party shall have any liability to the other with respect
to matters which arose subsequent to the casualty, other than the non-abated
portion of Base Rent and Additional Rent, if any. In addition, attached to
this Agreement is an example of an Estoppel, Subordination, Non-Disturbance,
and Attornment Agreement which shall be substituted for the form of
Nondisturbance Agreement previously attached as Exhibit F to the Lease.
Landlord acknowledges that Tenant is a wholly-owned subsidiary of Xxxxxx Day
Holding, Inc., which in turn is jointly owned by Xxxxxx Day Industries, Inc.
and Xxxx X. Xxxxx. Any change in the ownership or effective control of Xxxxxx
Day Holding, Inc. as between the aforementioned joint owners shall not be
deemed an assignment requiring Landlord's consent.
9. No Further Modification of Lease. Except to the extent modified
herein, all other terms and provisions of the Lease shall remain in full force
and effect.
IN WITNESS TO THE FOREGOING, the parties have set their hands effective
as of the day and year set forth above.
LANDLORD: FRIDLEY BUSINESS CENTER
PARTNERSHIP
By Northco Corporation, its general
partner
By /s/ Xxxxxx Xxxxx
---------------------------------------
Its Vice President
-25-
TENANT: XXXXXX DAY INTERNATIONAL,
INC., f/k/a XXXXXX-DAY COMPANY
By /s/ Xxxx X. Xxxxx
------------------------------------------
Its President
-26-
CONSENT OF GUARANTOR
The undersigned is the Guarantor of the above referenced Lease under a
Guaranty dated June 1, 1991. The undersigned hereby consents to the amendment
of the Lease, and agrees that its Guaranty shall be deemed to be remade as to
the Lease and the subject amendment, effective as of the effective date of
said amendment.
XXXXXX DAY INDUSTRIES, INC.
By /s/ Xxxx X. Xxxxxx
-------------------------------------------
Its VP Sec'y & Controller
Date: October 20, 1995
-27-
Second Amendment
Estoppel, Subordination, Non-Disturbance
and Attornment Agreement
[Sample of an estoppel, subordination, non-disturbance and attornment
agreement. Four pages.]
-28-
SECOND AMENDMENT TO MANUFACTURING LEASE AGREEMENT
THIS SECOND AMENDMENT TO MANUFACTURING LEASE AGREEMENT is entered into
effective as of the 20th day of October, 1995, by and between Xxxxx X. Xxxx,
an individual ("Landlord") and Xxxxxx Day International, Inc., f/k/a Xxxxxx-
Day Company, a Minnesota corporation ("Tenant").
RECITALS
A. Landlord, as successor to Fridley Business Center Partnership, a
Minnesota general partnership, and Tenant are parties, in said respective
capacities, to that certain Manufacturing Lease Agreement dated June 1, 1991,
as amended by amendment dated June 15, 1993 (collectively, the "Lease") under
which Tenant is leasing from Landlord 49,405 net rentable square feet of space
in the building (the "Building") located at 000 Xxxxxxx Xxxxx (formerly known
as 000 00xx Xxxxxx Xxxxx), Xxxxxxx, Xxxxxxxxx, 00000, all as more fully
described in the Lease.2
B. The Land (as that term is described in the Lease) has been replatted
and a portion of the Land has been sold. The parties wish to revise the Lease
to reflect the new legal description of the remaining Land.
C. The parties also wish to modify the terms of the Lease to provide,
among other things, for the lease of additional space and an extension of the
Term of the Lease, all as more fully described below.
AGREEMENT
IN CONSIDERATION of the mutual covenants of the parties described herein
and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties agree as follow:
1. Conflict of Terms. In the event of a conflict between the terms of
this Amendment and the terms of the Lease, the terms of this Amendment shall
govern.
2. Legal Description of Land. Exhibit B of the Lease is hereby revised
to reflect that the legal description of the Land is as follows:
-----------------------
1 Note: A formal application has been made to change the street address
of the Building to 000 Xxxxxxx Xxxxx.
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Xxx 0, Xxxxx 0, Xxxxxxx Xxxxxxxx Xxxx 0xx Addition,
Anoka County, Minnesota.
3. Extension of Term. Under the Lease, the Term of the Lease expires
on March 31, 1998. The parties hereby extend the Term of the Lease for an
additional seven (7) years and eleven (11) months (the "Extension Term"). The
Extension Term shall commence April 1, 1998 and shall terminate February 28,
2006.
4. Lease of Additional Space. Landlord hereby leases to Tenant
approximately thirty-three thousand nine hundred fifty (33,950) additional
rentable square feet of space in the Building (as that term is defined in the
Lease) as shown by cross-hatching on the site plan attached as Exhibit A (the
"New Space"). Tenant acknowledges that portions of the New Space are
currently leased to Steinwall Incorporated (the "Steinwall Space") and Kwik
File, Inc. (the "Kwik File Space") pursuant to separate leases which will
terminate in the near future. Tenant shall receive possession of the
Steinwall Space and the Kwik File Space on March 1, 1996, and its obligation
to pay Base Rent and Additional Rent for the New Space shall begin on that
date; provided, however, that Kwik File shall be allowed to remain in the Kwik
File Space for the thirty (30) day period from March 1, 1996 to March 31,
1996, while Kwik File completes moving out of the Kwik File Space, but shall
conduct its activities in such a way as to minimize any interference with
Tenant's preparation of the New Space. Landlord shall take diligent action to
confirm that Kwik File is responsible, during such period, for any loss or
damage to its personal property, equipment, or goods in the Kwik File Space
unless such loss or damage is attributable to the gross negligence or
intentional, willful misconduct of Tenant. The lease term for the New Space
shall end co-terminously with the Extension Term, i.e. February 28, 2006 (the
"New Space Term"). The New Space shall also include the south restroom which
shall be used exclusively by Tenant. Tenant shall also be allotted thirty
(30) additional parking spaces for the Building in connection with its lease
of the New Space, bringing the total number of parking spaces allocated to
Tenant to one hundred (100).
The parties acknowledge that the exact area of the New Space is unknown.
Within ninety (90) days of signing this Amendment, Landlord and Tenant shall
have the Leased Premises and New Space measured from the outside of the
exterior walls to the center of the interior walls to determine the exact area
of said space. Promptly following the determination of the exact area of the
Leased Premises and New Space, Landlord shall calculate, based upon said
measurement, the Base Rent (based upon the Base Rent per square foot as set
forth in the Base Rent schedule set forth in paragraph 5, below), and Tenant's
Proportionate Share of Operating Expenses for the Building and Complex
pursuant to paragraphs 5 and 6, below, and shall appropriately adjust the Base
Rent payable per month and Operating Expenses. Landlord and Tenant agree to
execute a written statement confirming the exact area of the Leased Premises
and New Space, the Base Rent schedule, Tenant's Proportionate Share of
Operating Expenses and the adjustments to the Base Rent and Operating
Expenses, if any.
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Landlord shall deliver the New Space to Tenant in "broom clean"
condition. Landlord is not aware of any repairs or restorations for which
Landlord is responsible under the Lease presently required for the New Space.
If any required repairs or replacements come to Landlord's attention or
Landlord's agents' or vendors' attention prior to Tenant's occupancy, Landlord
will make the repair or restoration in an appropriate manner, with
reimbursement by Tenant for Tenant's proportionate share thereof to the extent
required by the terms of the Lease, as in effect prior to the second
amendment.
Landlord and Tenant acknowledge that nothing contained in this Agreement
shall be construed to limit or excuse the obligations of Landlord or Tenant
under Article 8 of the Lease, which obligations shall be deemed to remain in
full force and effect.
5. Base Rent. From March 1, 1996 through the end of the initial Term
and during the Extension Term, Base Rent for the Leased Premises and the New
Space shall be payable monthly in advance on the first day of each month as
follows, subject to the provisions of paragraph 4, above:
Period Base Rent Per Base Rental
Square Foot Payable
Per Month
------------------- ----------- ----------
03/01/96 - 09/30/96 $2.75 $19,102.19
10/01/96 - 02/28/97 $3.00 $20,838.75
03/01/97 - 03/31/98 $3.00 $20,838.75
04/01/98 - 02/28/99 $3.25 $22,575.31
03/01/99 - 02/29/00 $3.25 $22,575.31
03/01/00 - 02/28/01 $3.25 $22,575.31
03/01/01 - 02/28/02 $3.25 $22,575.31
03/01/02 - 02/28/03 $3.50 $24,311.88
03/01/03 - 02/29/04 $3.50 $24,311.88
03/01/04 - 02/28/05 $3.75 $26,048.44
03/01/05 - 02/28/06 $3.75 $26,048.44
Within three (3) days following the execution of this Amendment, Tenant will
prepay the Rent on the New Space due for the first twelve (12) months of the
Term applicable to the New Space (i.e. Ninety-Six Thousand Eight Hundred
Ninety-Eight and 97/100 Dollars ($96,898.97) which will be used by Landlord
for the leasehold improvements to be made pursuant to paragraph 9 of this
Amendment.
6. Obligation to Pay Rent. Tenant's obligation to pay Base Rent and
Additional Rent on the New Space shall commence on March 1, 1996. However, if
the improvements to be constructed by Landlord pursuant to Section 9, below,
are not substantially completed
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by March 1, 1996, with the exception of the south demising wall which is to be
completed by April 1, 1996, the Tenant's obligation to pay Base Rent and
Additional Rent on the New Space shall xxxxx until such improvements are
substantially completed. Under no circumstances shall Tenant be obligated to
pay Base Rent or Additional Rent on the New Space until the occupant of the
Steinwall Space has vacated the Steinwall Space, or if Kwik File has not
vacated the Kwik File Space by March 31, 1996. In the event that the occupant
of the Steinwall Space has not vacated such space by February 1, 1996, or if
Kwik File has not vacated the Kwik File Space by March 31, 1996, Landlord
shall take prompt legal measures to terminate such occupancy.
7. Operating Costs. During the Extension Term and New Space Term,
Tenant shall pay Tenant's Proportionate Share of the Operating Costs for the
Building and the Complex in accordance with the provisions of the Lease;
provided, however, that Tenant's Proportionate Share shall be recalculated
following the measurement of the Leased Premises and New Space pursuant to
paragraph 4, above. Tenant's Proportionate Share of Operating Expenses for
the Building is presently estimated to be 44.69 percent. Tenant's
Proportionate Share of Operating Expenses for the Complex shall be
appropriately adjusted following measurement of the New Space pursuant to
paragraph 4, above.
8. Tenant's Leasehold Improvements. Pursuant to Article 9 of the
Lease, Tenant, at its sole cost, is hereby authorized to make the following
leasehold improvements to the Leased Premises:
(a) Add roof ventilators.
(b) Modify the floor to allow the installation of one (1) special
machine; provided, however, that Tenant shall restore the floor to
its original condition prior to vacating the Leased Premises and New
Space.
(c) Remove interior walls, as required.
(d) Add interior walls, as required.
9. Landlord's Leasehold Improvements. Landlord shall be responsible
for the cost and installation of the south demising wall to be added to the
New Space and the zoning of gas radiant heat in the New Space, if required.
The zoning of gas radiant heat in the New Space shall be completed by March 1,
1996, subject to delays reasonably beyond the control of Landlord, including
delays attributable to the acts or failures to timely act of Tenant.
Installation of the south demising wall shall be substantially completed by
Landlord by April 1, 1996, subject to delays reasonably beyond the control of
Landlord, including delays attributable to the acts or failures to timely act
of Tenant. In addition, Landlord shall provide for the separate metering, or
submetering, of the gas and electricity used by each of the tenants in the
Building by March 1, 1996 subject to delays reasonably beyond the control of
Landlord. Landlord shall deliver within three business days copy of a
contract to construct a drive-in asphalt ramp on the northeast
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corner of the Building with a sufficient weight bearing capacity for eighteen
thousand (18,000) pound-per-axle trucks in accordance with the design shown on
attached Exhibit B. Construction of this ramp shall be completed during
calendar year 1995 weather permitting so long as this Lease is fully executed
by Tenant not later than October 20, 1995. Landlord shall not remove or make
any changes to the make-up air unit in the Steinwall Space. Landlord shall
not remove the existing office in the Steinwall Space. Landlord shall cause
such facilities and equipment to be installed so that an additional eight
hundred (800) amps electric service, in accordance with the provisions of
attached Exhibit C, is available to the New Space by March 1, 1996 for
Tenant's use through the Lease Term, subject to delays beyond the reasonable
control of Landlord.
10. Option to Renew. Tenant shall have the right to further extend the
Term of this Lease for two (2) periods of five (5) years each as hereinafter
provided, each such five (5) year renewal period being sometimes herein
referred to as a "Renewal Term". The conditions to such renewals shall be as
follows:
(a) The Lease shall be in full force and effect and Tenant shall
not be in default in the performance of any of the terms, covenants
and conditions of the Lease, in respect to which notice of default
has been given and has not been or is not being remedied in the time
limits specified in the Lease; provided, however, that Landlord
shall have the right, at its sole discretion, to waive the non-
default condition;
(b) Such Renewal Term shall be on the same terms, covenants and
conditions as in this Lease; provided, however, the annual Base Rent
for such Renewal Term shall be the fair market Base Rental rate for
such space on the date such Renewal Term shall commence in relation
to comparable (in quality and location) space located in the
relevant market area. The fair market Base Rent of the Leased
Premises shall be determined as of the date three hundred sixty
(360) days prior to commencement of the Renewal Term in question.
If Tenant has properly elected to renew the Term of this Lease, and
Landlord and Tenant fail to agree at least three hundred thirty
(330) days prior to commencement of the applicable Renewal Term upon
the fair market Base Rent of the Leased Premises, the amount of the
fair market Base Rent of the Leased Premises shall be determined by
arbitration in accordance with the provisions of paragraph 10, below
("Arbitration"). The fair market Base Rent of the Leased Premises
shall be based upon Tenant's presently contemplated use of the
Leased Premises. In no event shall the Base Rent of the Leased
Premises for the Renewal Term in question be less than the Base Rent
payable by Tenant under the Term of this Lease immediately prior to
commencement of the applicable Renewal Term (the "Minimum Renewal
Rent"). If, however, the Fair Market Base Rent determined in
accordance with the provisions of paragraph 10, below, is less than
the Minimum Renewal Rent, Tenant shall have the option to cancel its
election to renew the Term; provided, however, that Tenant's option
to rescind its exercise of its option to renew must be
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exercised, if at all, not later than thirty (30) days following
Tenant's receipt of notice of the Fair Market Base Rent;
(c) Tenant shall exercise its right to a Renewal Term, if at all,
by notifying Landlord in writing of its election to exercise the
right to renew the Term of this Lease no later than three hundred
sixty (360) days prior to the date of commencement of the Renewal
Term in question. For a period of thirty (30) days following the
date of notice, the parties shall make a good faith effort to agree
upon the fair market Base Rent of the Leased Premises for such
Renewal Term. Any agreement reached by the parties with respect to
such fair market Base Rent of the Leased Premises for such Renewal
Term shall be expressed in writing and shall be executed by the
parties, and a copy delivered to each of the parties. In the event
that Landlord and Tenant fail to agree within said thirty (30) day
time period, the fair market Base Rent for the Leased Premises for
such Renewal Term shall be determined by Arbitration. The
arbitrators shall be directed to determine the fair market Base Rent
for the Leased Premises as above provided and shall be instructed to
make said appraisal independently, without consulting with each
other. Upon an established date at an established time, all three
(3) arbitrators shall simultaneously submit their determinations as
to fair market Base Rent, such determination to be submitted in
sealed envelopes and to be opened jointly by Landlord and Tenant.
The fair market Base Rent for the Renewal Term shall be determined
by averaging the two (2) arbitrators' fair market Base Rent
determinations which are closest in amount to each other (or if one
appraisal is less than one of the other appraisals and more than the
other appraisal by the same amount, all three appraisals shall be
averaged).
11. Arbitration. Any disagreement, dispute or determination required by
or arising under the provisions of paragraph 10, above, requiring arbitration
shall be carried on and concluded in accordance with the provisions of
subparagraphs (a) and (b) hereof:
(a) In each case where it shall become necessary to resort to
arbitration, and the subject of the arbitration is to determine fair
market Base Rent, all arbitrators appointed by or on behalf of
either party or appointed pursuant to the provisions hereof shall be
MAI members of the American Institute of Real Estate Appraisers with
not less than ten (10) years of experience in the appraisal of
improved commercial and industrial real estate in the Minneapolis,
Minnesota metropolitan area and be devoting substantially all of
their time to professional appraisal work at the time of
appointment, and be in all respects impartial and disinterested. In
determining fair market Base Rent, the arbitrators shall consider
the condition of leasehold improvements in the Leased Premises
(other than removable trade fixtures) in comparison to leasehold
improvements in market comparables but shall not take into account
any market concessions (free rent, moving allowances, etc.) in
market comparables;
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(b) The party desiring arbitration shall give written notice to
that effect to the other party, specifying in such notice the name,
address and professional qualifications of the person designated to
act as arbitrator on its behalf. Within twenty (20) days after
service of such notice, the other party shall give written notice to
the party desiring such arbitration specifying the name, address and
professional qualifications of the person designated to act as
arbitrator on its behalf. The two (2) arbitrators shall, within ten
(10) days thereafter, select a third arbitrator. The decision of
the arbitrators so chosen shall be given within a period of thirty
(30) days after the appointment of such third arbitrator. Each
party shall pay the fees and expenses of the arbitrator appointed by
or on behalf of such party and the fees and expenses of the third
arbitrator shall be borne equally by both parties. If the party
receiving a request for arbitration fails to appoint is arbitrator
within the time above specified, or if the two (2) arbitrators so
selected cannot agree on the selection of the third arbitrator
within the time above specified, then either party, on behalf of
both parties, may request such appointment of such second or third
arbitrator, as the case may be, by application to any Judge of the
District Court of the County of Hennepin, State of Minnesota, upon
ten (10) days prior written notice to the other party of such
intent. The arbitrators so selected shall have all rights and
powers conferred on them by the Uniform Arbitration Act of the state
in which the Leased Premises are situated, and except as otherwise
provided for herein, the arbitration proceedings shall be carried on
and governed by such Act.
12. Miscellaneous. Article 18, Section 1(e) of the Lease is hereby
deleted and shall be of no further force or effect. Article 14, Section 1 of
the Lease is amended by adding the following language: If Landlord does not
initiate such repairs and restoration within a reasonable time following a
casualty or does not complete such repairs and restoration with one hundred
eighty (180) days thereafter, Tenant shall have the right to terminate the
Lease upon notice given within thirty days following the expiration of such
period, and thereafter, neither party shall have any liability to the other
with respect to matters which arose subsequent to the casualty, other than the
non-abated portion of Base Rent and Additional Rent, if any. Article 25 of
the Lease presently refers, in Section 12 thereof, to an Exhibit F, which
lists removable trade fixtures, and to an Exhibit G, which is a Nondisturbance
Agreement. In fact, those references are reversed and Exhibit F is the
Nondisturbance Agreement, and Exhibit G is a list of removable trade fixtures.
The Lease is hereby modified accordingly. Landlord acknowledges that Tenant
is a wholly-owned subsidiary of Xxxxxx Day Holding, Inc., which in turn is
jointly owned by Xxxxxx Day Industries, Inc. and Xxxx X. Xxxxx. Any change in
the ownership or effective control of Xxxxxx Day Holding, Inc. as between the
aforementioned joint owners shall not be deemed an assignment requiring
Landlord's consent.
In addition, attached to this Agreement is an example of an Estoppel,
Subordination, Non-Disturbance, and Attornment Agreement which shall be
substituted for the above referenced form of Nondisturbance Agreement
previously attached as Exhibit F. Finally, with respect
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to Exhibit G, within ninety (90) days following the date that Tenant takes
occupancy of the New Space, Landlord and Tenant shall appropriately modify
Exhibit G to include any additional and/or different removable trade fixtures.
13. No Further Modification of Lease. Except to the extent modified
herein, all other terms and provisions of the Lease shall remain in full force
and effect.
IN WITNESS TO THE FOREGOING, the parties have set their hands effective
as of the day and year set forth above.
LANDLORD:
/s/ Xxxxx X. Xxxx
-----------------------------------------
Xxxxx X. Xxxx
TENANT: XXXXXX DAY INTERNATIONAL,
INC., f/k/a XXXXXX-DAY COMPANY
By /s/ Xxxx X. Xxxxx
-----------------------------------------
Its President
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CONSENT OF GUARANTOR
The undersigned is the Guarantor of the above referenced Lease under a
Guaranty dated June 1, 1991. The undersigned hereby consents to the amendment
of the Lease, and agrees that its Guaranty shall be deemed to be remade as to
the Lease and the subject amendment, effective as of the effective date of
said amendment.
XXXXXX DAY INDUSTRIES, INC.
By /s/ Xxxx X. Xxxxxx
------------------------------------------
Its VP, Sec'y & Controller
Date: October 20, 0000
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Xxxxxx Xxxxxxxxx
Exhibit A
[Floor plan of building indicating rented space.]
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Second Amendment
Exhibit B
[Map showing location of ramp to be constructed.]
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Second Amendment
Exhibit C
[Quotation for electrical work indicating scope and location of work to be
performed. Two pages.]
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Second Amendment
Estoppel, Subordination, Non-Disturbance
and Attornment Agreement
[Sample of an estoppel, subordination, non-disturbance and attornment
agreement. Four pages.]
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